Jauncey v The The Queen

[2022] NSWDC 249

District Court

New South Wales

Medium Neutral Citation:

Jauncey v R [2022] NSWDC 249

Hearing dates:

18 May 2022

Date of orders:

18 May 2022

Decision date:

18 May 2022

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See par [30].

Catchwords:

CRIMES – APPEALS – SEVERITY OF SENTENCE – DRIVING OFFENCE - Whether Intensive Corrections Order of Magistrate appropriate – Whether Community Corrections Order Appropriate – Whether period of disqualification under mandatory interlock order appropriate.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Sentence

Parties:

Appellant - Samuel Rhys Burford Jauncey
R – Crown

Representation:

Appellant – Mardini, C. of Mardini Defence Lawyers
R – Loosley, J. of the Office of the Director of Public Prosecutions

File Number(s):

2021/00262061

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Citation:

Date of Decision:

5 April 2022

Before:

O'Brien LCM

File Number(s):

2021/00262061

Judgment

1. HIS HONOUR: This is an appeal against severity of a sentence passed by Magistrate O’Brien sitting in the Local Court at Wollongong on 5 April 2022. The appellant was charged with driving with a high range prescribed concentration of alcohol (“PCA”). The blood alcohol reading was 0.25 or, as the press would have it, five times the legal limit.

Background

2. On the evening of Wednesday 14 July 2021 the appellant had visited his sister. He was experiencing matrimonial difficulties. His sister lives in Mount Ousley. According to a letter written by the appellant on 13 December 2021 he visited his sister’s house to say goodbye to his five year-old nephew, with whom he had what he describes as an “amazing relationship” and whom he dearly loved. According to the same letter, the appellant had decided to take his own life. The motor vehicle accident in which he was involved was a result of that decision.

3. In any event, it is clear that the appellant took a large amount of alcohol during his visit to his sister’s house, and he may have been drinking earlier, on 14 July, or indeed had drunk heavily on the evening of 13 July.

4. At 12.15am on Thursday 15 July 2021, the accused left his sister’s house and began to drive home. He drove onto Dumfries Avenue and headed east towards Mount Ousley Road, Fairy Meadow. The appellant drove over a crest on Dumfries Avenue and failed to negotiate a slight bend in the road which was just over the crest. As a result, the front nearside of his vehicle collided with a large wooden power pole causing a “heavy impact”. Nearby, residents heard the impact and rushed to the aid of the appellant. Emergency Services were called.

5. By the time the police arrived, the fire brigade had already arrived at the scene and were clearing hazards from the carriageway and attempting to clean up an oil spill caused by the collision between the appellant’s black Toyota Hilux tray back and the power pole. When the police arrived, the appellant was still sitting in the driver’s seat. He was not trapped, but he appeared, to the police, to be dazed and concussed. He had been heavily bleeding from the forehead, but one of the residents had placed a temporary patch on his forehead to stop the bleeding. Police then awaited the arrival of the ambulance.

6. The appellant initially refused to go to hospital. The police wanted him to go to hospital to undergo mandatory blood testing. The appellant, however, wanted to go home. The appellant eventually agreed to go to hospital when the ambulance arrived. The appellant was taken to the Wollongong Hospital, but I know nothing of the history given by him at that institution, nor how long he was there. I do know, however, that the mandatory blood testing returned a reading of 0.254.

7. The Facts Sheet that was before the Local Court tells me that at the hospital, police observed a significant, large laceration on the appellant’s forehead, but the police were unaware of any other injuries that the appellant may have sustained.

8. On 22 July 2021, a week later, the appellant was admitted to the South Pacific Private Hospital for the treatment of alcohol use disorder and depression. According to the discharge summary from the South Pacific Private Hospital, the appellant denied any suicidal ideation and told the hospital that he had not had any suicidal ideation “for months”, which is inconsistent with the history given by the appellant in the letter to which I have already referred, and is inconsistent with histories subsequently given by the appellant.

9. Whether the appellant did attempt suicide or not is only a question that could be resolved with sworn evidence, and the appellant did not give sworn evidence either in the Local Court or in this Court. However, it is largely irrelevant.

10. The further history recorded at the South Pacific Private Hospital was this:

“Sam had single vehicle (driver ute) MVA 15 July 2021 he had been drinking a few beers, but also drank night before. Hit telegraph pole. LOC - unsure. Multiple bruises/concussion/laceration head. CT scan negative at Wollongong Hospital. Required suturing to left crown/forehead. MVA was prompt for current admission.”

11. The primary psychiatric diagnosis made at the South Pacific Private Hospital was of an unspecified depressive disorder, and the other diagnosis was of an alcohol use disorder. However, the appellant had earlier been admitted to hospital for similar problems.

12. In evidence is a discharge summary from the South Coast Private Hospital bearing date 26 August 2020. That records that, on 2 August 2020, the appellant presented to the Wollongong Hospital intoxicated and with suicidal ideation. Apparently, the appellant told the Wollongong Hospital that he was worried that his wife would leave him. It appears that attendance at Wollongong Hospital led to the appellant’s admission, on 9 July 2020, to the South Coast Private Hospital where he was an in-patient until 29 July 2020, that is, a period of almost three weeks. He was under the care of Dr Benjamin Allard and was also seeing a psychologist called Nigel Woods. The diagnoses provided by Dr Allard were of major depression in early remission, and an alcohol use disorder with a pattern of binge drinking which Dr Allard thought was also in early remission.

13. According to a history given in late 2021, the appellant’s wife left him on 20 December 2020. That appears to have generated a further bout of heavy drinking leading ultimately to the motor vehicle accident on 15 July 2021.

14. After the appellant’s discharge from the South Pacific Private Hospital on 10 August 2021, the appellant found employment with the Forest Industries Group at Taren Point. He started work there as a labourer, but was regarded, despite his known mental health problems, as being reliable and hardworking. The appellant was given time off work from Forest Industries in order to undergo rehabilitation in Victoria. When that rehabilitation was completed the appellant returned to working for Forest Industries in its engineering arm.

15. The letter from the director of Forest Industries goes on to say this:

“…He has been able to thrive in this position with his prior experience in Building and Construction Law and his practical experience on construction sites.

We fully support Sam and allow him to take the time to attend his appointments with his Alcohol and Drug Counsellor with IDAS on Fridays. We will continue to support Sam and wish only the best for him through his recovery.”

16. It is clearly supportive employment and, of course, being in employment is of paramount concern in keeping a person mentally well. The treatment which the appellant had in Victoria was at the Hader Clinic. The appellant commenced at the Hader Clinic at Geelong on Thursday 2 December 2021. He completed 28 nights at that clinic and then moved to the second phase of treatment at the Hader Clinic at Essendon. After completing that treatment, the appellant returned to the Hader Clinic at Geelong for an additional 20 nights’ treatment and completed treatment on 31 January 2022. The appellant was then discharged from the Hader Clinic on 31 January 2022. A discharge summary from the Hader Clinic at Geelong indicates that the appellant was under the care of a psychiatrist, Dr Bernard Hickey. The appellant himself raised with Dr Hickey a question as to whether he might be suffering from adult attention-deficit/hyperactivity disorder (“ADHD”). Dr Hickey told him that was a possibility, but the final diagnoses made are not specifically stated. However, the treatment was with Fluoxetine, an antidepressant. That strongly suggests there was a diagnosis of a depressive illness and clearly the treatment was designed to rehabilitate the appellant from alcohol addiction.

17. A letter from the clinic addressed to the Local Court said this:

“The Hader Clinic Geelong provides a specialised rehabilitation program for people with substance abuse dependence in a supervised residential setting that provides a structured daily program which includes individual counselling, group therapy, work tasks, scheduled and random Urine Drug Screens (UDS), attendance at Narcotics Anonymous and Alcoholics Anonymous meetings.”

18. A week after discharge from the Hader Clinic, the appellant commenced attending the Illawarra Drug and Alcohol Service (“IDAS”). It is clear from the letter from Forest Industries that the appellant attends upon IDAS every Friday for counselling. In addition, the appellant is attending Alcoholics Anonymous. In evidence was a letter from Mr Roger Joyce, dated 31 March 2022. One paragraph of that letter is this:

“As I write this today, I know that Sam is attending meetings once a day. He has committed to me and to himself that he will attend 90 meetings in 90 days as a foundation for his recovery and is now halfway through this, working through the Twelve Steps with me on a weekly basis.”

19. The letter points out that all who attend Alcoholics Anonymous are recovering from their alcoholism and that the journey from alcoholism is for many “not a straight line”, that is, that people often relapse.

20. The appellant’s criminal history is limited to an earlier charge of high range PCA. That offence occurred on 25 February 2012 and for that the offender was dealt with by the Local Court at Picton later in 2012. He was fined $840 and disqualified from driving for 12 months. I am told, and am prepared to accept, that was a result of a “heavy night” on the previous evening, that is, a heavy night drinking alcohol. At the time the appellant was 24 years old. The offence with which I am now dealing occurred over nine years later, when the appellant was 33 years old.

21. Only one thing mars the picture of rehabilitation and that is the fact that on 12 February 2022, the police at Narellan charged the appellant with “driving under the influence of alcohol”. Why there was no PCA offence is completely unclear. The appellant has pleaded not guilty to that offence and, as I understand it, the hearing of that matter will occur in January 2023. Since the offender has pleaded guilty he is entitled to the presumption of innocence and, therefore, I accept that the offender has abided by the requirement to abstain from alcohol since he undertook rehabilitation since 15 July 2021.

22. During the hearing of the appeal I voiced concerns about whether the history of the suicide attempt be accurate and, as I have said, that can only be determined on sworn evidence. I was also concerned as to when the offender commenced having a problem with alcohol. According to a history given to the Hader Clinic in Geelong, the problems commenced with alcoholism in about 2016 with the commencement of marital difficulties. However, it is unclear to me whether the marital difficulties led to the alcoholism or the alcoholism led to the marital difficulties. The important things is that the appellant stays away from alcohol.

23. In the past the appellant has completed a law degree, but has not been admitted to practice. One of the references before me is from a local solicitor which contains this matter:

“Sam was employed in the same firm of mine as a Law Clerk for approximately 2 ½ years (until March 2019) and he has always shown a respect for alcohol during all work functions. I have never seen him drink and drive. I was Sam’s supervisor and he assisted me with my criminal matters and volunteered his time to lecture at the PCYC Traffic Offenders Program which was run by the PCYC at Lake Illawarra and Bulli when I [was] unable to attend. Hence, my dismay when Sam disclosed to me his current predicament. I was shocked to hear of this offence as it does not reflect the Sam I know.”

24. There are a number of references which all indicate some connection between matrimonial difficulties and the appellant’s drinking habits, but again, which came first is difficult to know.

25. Fortunately for the appellant, in the collision which led to the charge no one else was involved. The property damaged was to his own motor vehicle. The only person injured was himself.

26. His criminal history as such does not indicate that a custodial sentence ought to have been imposed. Indeed, the imposition of a custodial sentence for an offence of high range PCA, when the only other offence of the same nature had occurred some nine years earlier, is extremely unusual. Clearly, the thrust of the learned magistrate’s judgment was rehabilitation. The fact that the appellant has taken the steps that he has to rehabilitation himself is to his great credit. The fact that he has held down employment with Forest Industries, where he is certainly well regarded, is not only to his credit but to the credit of his employer.

27. The learned magistrate imposed an Intensive Corrections Order (“ICO”) for a period of 12 months with supervision by Community Corrections at Wollongong. The appellant was required to undertake rehabilitation and take all prescribed medication as directed and to comply with all reasonable directions of his health care professionals. He was also fined $400. There was an initial disqualification from driving for a period of seven months and a mandatory interlock order with the requirement that the appellant drive with an interlock licence for a period of 24 months.

Consideration

28. The appellant now resides in Camden with a new partner and is working at Taren Point. The commute from Camden to Taren Point would not be a small trip. I am persuaded that it is in the interests of the community and the appellant to reduce the minimum disqualification under the mandatory interlock order to the minimum of six months. The 24-month period of the interlock licence is the minimum interlock period.

29. The major complaint by the appellant is that rather than being sentenced to an ICO he ought be sentenced to a Community Corrections Order (“CCO”) with the same conditions that pertain to the ICO imposed by the learned Magistrate. There is merit in the argument put forward that an ICO in the circumstances was not warranted, but the same result flows from a CCO.

30. For those reasons I set aside the sentence passed by the Local Court at Wollongong on 5 April 2022. In lieu thereof, under s 8 of the Crimes (Sentencing Procedure) Act 1999 I order that the offender be released on a CCO for a period of 12 months from today. Conditions of the order are as follows. Firstly, you are not to commit any offence. Secondly, you are to appear before the Court, if called upon to do so, at any time during the term of the CCO. Thirdly, you must participate in any rehabilitation program as directed by Community Corrections. Fourthly, you must abstain from alcohol. Fifthly, you are to submit to supervision by a Community Corrections officer. You are to report to the Community Corrections Office at Campbelltown within five business days. Sixthly, you are required to take all prescribed medication as directed, and to comply with all reasonable directions of any medical practitioner. I impose a fine of $400. There is a mandatory interlock order pursuant to s 211 Road Transport Act 2013. The initial disqualification period is six months. The interlock licence period is 24 months.

31. Any other orders sought?

LOOSLEY: No, your Honour.

MARDINI: No, your Honour.

Decision last updated: 07 July 2022